Legal and Policy Framework of the EU Relating to Criminalisation, Prevention and Demand Reduction
Paper presented at
The Pontifical Academy of Social Sciences
Human Trafficking: Issues Beyond Criminalization
17 – 21 April, 2015
Casina Pio IV, Vatican City
Thank you very much for inviting me. Thank you, of course, to the Pontifical Academy of Social Science and to my friends who invited me here today. I was here one year ago and I am very inspired to see the effort of the Holy Father and how much it has developed in the last year. I think the messages that are sent to the public are extremely important, and we need to do a lot more.
In the sermon this morning I gave an example of a person that I met during my work, and I want to give you one more example because many of you were not there this morning. I met a young woman in one of the European countries who was asked by a friend of hers – that was very recently – to go to another country that has better employment conditions, to get a job. It was her best friend. So she left her country at nineteen to go and work in another European country. The minute she got there she was locked in a flat and she was forced to marry a third country national. And for ten months this third country national, now her husband, and a lot of other people, also trafficked her for sexual exploitation. So we have a case of multiple forms of trafficking, if you like. After ten months a neighbour understood that she had been locked in the room for all this time; she alerted the police, the authorities did a very good job, they helped her and she went back to her country. She is still in the shelter because if she returns to her village she is under threat, her family is under threat. These organised networks threatened to kill them, both the family and her. The woman has blood cancer and she has no access to healthcare in her country, because it has to do with the regions and so on. So she is stuck in that situation.
I think that if we want to talk about trafficking, we need to remember that we are talking about real people, in real situations, suffering multiple forms of exploitation many times. And if we want to talk about trafficking here today we need to remember what it really is. It is two things. We can talk about vulnerability all day, we can talk about poverty all day, we can talk about war; in reality, this is predominantly about money, about profits and about demand. If people don’t use the products and services of the victims, and if there is no profit, there is no trafficking. There are many other horrible things, but we don’t call them trafficking. We can easily say that trafficking in human beings is about buying and selling people and their services. Let’s call it by its name. It is a serious form of organized crime. As such it requires that we all cooperate together on various levels, so I’m very glad to be here, because different stakeholders need to be involved in this very complex phenomenon.
I want to tell you a little bit about what we do at the EU. For us it is a very high priority. The President of the European Commission, President Juncker, has stated very clearly this is a priority for the upcoming years, and fortunately needs to remain a priority. And we also need to remember that in the Charter of Fundamental Rights, trafficking is the only form of crime that is explicitly prohibited. We are here to talk about an extreme fundamental rights violation. We are here because, as we were told before, there are potentially hundreds of thousands of people at a given time in Europe today, as we speak, who are trafficked.
I want us also to remember that we have different forms of exploitation, of trafficking. Victims are forced to beg, they are trafficked into domestic servitude, sham marriages, illegal adoptions, for the purpose of the removal of organs, to engage in criminal activities, benefit from, forced labour, and sexual exploitation.
We are here to talk about going beyond criminalization. I don’t know if we are even there in criminalization, and I’ll explain. We need to have criminalisation, we need to have laws that prevent, protect and criminalise. We need to ensure that we prevent the phenomenon, that we prosecute the criminals and we protect the victims. This is what the EU legislation does. I think I can very comfortably say that it is one of the most progressive legislations in the world, because it has this comprehensive approach. What I do in this context is that I have been mandated to give strategic direction in the work against trafficking at the EU level, and I try to coordinate the services of the Commission, as well as other entities including EU agencies, in order to progress in the work that we do against trafficking.
So earlier on we heard a little bit about the scale of the phenomenon. Let me tell you a little bit about what happens in Europe. What we know for the years 2010-2012 is only the number of registered victims: we don’t estimate, we don’t speculate, we don’t do this thing. We count how many people have been registered by the authorities, and we had 30,146 people who were registered. It is safe to say that the numbers are much, much higher. 80% of those victims were women and 70% of the traffickers, the criminals, are men. 16% of those victims registered are children, girls and boys. The most widespread form of exploitation is sexual exploitation, 69%, of which women and girls are the vast majority; 95% of them are women and girls. We also have trafficking for forced labour, it’s 19% of the reported cases, and it affects mostly men and boys. I also want to say that two thirds of the victims in the EU are EU citizens, the ones that are registered. Now this could be because we are better at identifying the EU citizens, but nevertheless there is a large number of people from the EU that are being trafficked. So tackling migration policies is a very important parameter of the work that we do, but it is not the only parameter, when we talk about EU citizens being trafficked by EU citizens, we want to talk about data, because it is useful to guide our work and it is useful to guide our policy.
But when we talk about the woman that I referred to in the beginning we also need to think beyond numbers. It is not only about the scale of the phenomenon, but it is about real people in real life situations. So as I said, we have the EU legislation that is a milestone, I think, in terms of how ambitious a criminal law instrument it is. And our member states, our 28 member states in the EU had to translate this into national law two years ago, the deadline was two years ago. Twenty-five member states have already told us that they have translated this into national law, and we are still expecting Belgium and Germany to send us this information.
I heard a little bit of the conversation yesterday in the room, and I want to also highlight that for the EU it is very important that we are clear about concepts. So, for example, we talk about trafficking in human beings and slavery interchangeably, and I think we have to make sure that we don’t do that. Slavery, together with trafficking is prohibited, of course, by the Charter of Fundamental Rights. But they are two different legal and social phenomena. So why is it important to know that? Because not all trafficked people will necessarily be slaves, and not all slaves will necessarily be trafficked, and the more we are clear about that, the more we stand a chance to help all of them properly.
I also want to clarify the difference between human trafficking and human smuggling. We talk a lot about the people, the horrifying situation in the Mediterranean right now, and especially in Italy, that we know of, all these people arriving on the boats. Human smuggling is a horrifying situation, but it doesn’t necessarily mean that it is trafficking. And why do I say that? Because the first thing that we need to remember is the issue of consent. It is a difficult issue to talk about, but people who are smuggled pay an amount of money, they are extremely vulnerable, and they consent that they will take the trip to come, for example, to Europe, in order to work. For trafficked people, consent is irrelevant. I want to go back to what you said yesterday. Legally speaking, whether they consented or not, it is irrelevant. Especially think about children! We shouldn’t even be talking about consent.
When this woman went to this other country to work, she consented to go and work. What she didn’t consent to was the continuous exploitation that resulted from that. Also, when it comes to trafficking, people don’t need to cross borders. You can be trafficked as an Italian citizen within Italy, for example. When it comes to smuggling people, certainly there is a cross-border element. And the most important thing, when we talk about trafficking, we are talking about a person whose individual rights have been violated. When we talk about smuggling, this is a little bit different, in the sense that it is a crime against the state, as opposed to a crime against an individual. So why am I saying all that? I’m saying all that because the more we understand this phenomenon, the better able we’ll be to help the victims and protect them accordingly.
Beyond criminalization: we need to understand the nature of the problem as a problem that affects women and men, boys and girls, but not always in the same way, as the data demonstrates. For example, when it comes to the issue of trafficking for sexual exploitation, the European Union understands it as a structural form of violence against women. So when we talk about gender, we always think about trafficking of women and girls for sexual exploitation. This is not the whole story, this is part of the story, so when I talked before about statistics, this is what the member states told us. They included exploitation for prostitution or other forms, in the areas of street prostitution, window prostitution, private flats, brothels, strip clubs, bars, pornography production companies, escort services, massage parlours, modelling agencies, hotels, private clubs, everywhere.
Why am I saying all that? Because what is important to remember is that there are very strong links between prostitution markets and exploitation, trafficking and organized crime. If we don’t accept that, then we cannot help the people who are in this high-risk sector, and I want to be very clear, I am not here to say that all prostitution is trafficking; this is not what I’m here to do, nor my mandate to explore. But as one of the Chiefs of the German Federal Police said, all sex trafficking they identified was in the prostitution sector. So we need to understand that this is a high-risk sector. We also need to understand that we need appropriate spaces for men and boys. In most of our countries we tend to identify women and girls for sexual exploitation as the only form of human trafficking. Well, this is not the case. We have an extreme number of people who are abused into forced labour. And we need to be able to protect these people, who tend to be predominantly men and boys. We need to have specific shelters and facilities for these people and we need to understand all these parameters. And that’s why the European Commission has prioritised on labour exploitation, and we have a number of areas in which we work. We have almost finalised a study of case law in all our member states to understand more and to help prosecutors. We have given extensive funding and we are working a lot with labour inspectors. I will not bore you with that.
Let me get to the most important parameter of the work we should be doing – I don’t know if we do enough – which is children. There are no contested issues here. We are not here to talk about consent, we are not here to talk about work and workers’ rights, we are not here to talk about forced labour of children. We are here to talk about child trafficking and it is extremely clear what that means. This is something we have to prioritise. In the European Commission we have issued a lot of guidelines, we have done a lot of work on that, we have given extensive funding, some people say ‘you give too much funding for children’, and I don’t know what too much is when it comes to children and protecting children. We also need to remember that a lot of the people who end up being forced into labour, forced into sexual exploitation, forced into sham marriages, as adults, it starts off as children. So by protecting children we are also protecting potential people who will become adults and continue to be exploited. So, for us, victims and children are at the very heart of our legal and policy framework.
As I said before this morning at the sermon, we seem to talk all the time about the traffickers and I’m very glad to hear the ILO talk about – of course we agree on criminalization, we are here to ensure that the law speaks of our values and our norms in society. Criminals have to be subject to justice, and we are here to talk about the victims, and we talk about the victims and how to help them, but we never talk about the real issue. Here are the criminals – here are the victims; who is standing here in the middle? Who is using the services of those people? Who is buying the cheap products? Who is employing those people illegally? Who is forcing them into labour? Who is raping those women and girls and those boys and sometimes men, on an everyday basis? Most of the time it is not the trafficker, most of the time it is the people around us, it is the users, and because it is the people around us, the clients, the customers, the users, the procurers, we are very uncomfortable talking about it. So for every victim of trafficking there are many, many, many more perpetrators, and this is what we need to address. And I am telling you this as a policymaker, because it is my job to remind the member states that they have a legal obligation, according to the EU law, to discourage and take action to reduce demand. It is not because I think that personally, it is because it is a legal obligation.
Our directive, our legislation, also says that the member states have to at least – and I stress at least – consider making it a crime to use the services of victims of trafficking with the knowledge that the person is trafficked. This is extremely serious, because again this goes back to criminalisation in another way. I have to draft a report to see how the member states translate the EU law into national law, and I am very eager to see what the member states are doing to take action to reduce demand in a legal manner, and whether they are considering the criminalisation part. And I have a question for you, which is a question that I have to reply in a report in 2016, legal obligation again: are you aware of any other area of crime where the person is knowingly – I stress the ‘knowingly’ – involved and is not criminalised? I have spoken to prosecutors time and time and time again, and they cannot think of an example. And my difficult job is to draft a report on what the member states have done on this issue. As Beate Andrees said before me, the law has a normative effect. Criminalising those responsible is important. The document of the Vatican talks about criminalising the traffickers, but I am not referring to this, I am referring to criminalising those who knowingly make use of the services. And many people will say, “Ah but you know it is very difficult to gather evidence”. So what is the law doing? Do we say, “Oh, with murder it is very difficult to find evidence so we don’t criminalise”. Do we do that? Is that what the law is there for? Of course we have to have good laws that help the evidence-building process, but that doesn’t mean we shouldn’t consider it.
And we need a comprehensive approach on prevention in order to do that. And what we are doing at the moment is we have launched a study to look at what all these prevention initiatives that we have done and we have funded throughout the EU, what have they achieved. Have we got less trafficking? When we have all these awareness-raising activities, do we stop potential traffickers? Do we stop potential users or buyers? Do we stop potential people who might become less vulnerable to being trafficked? We need to understand that more, to do better policy in the future.
If we also want to talk about going beyond criminalisation I said in the beginning that I understand trafficking as being about demand, and I think I covered that part, and about money. The ILO tells us that forced labour across the world is worth 150 billion dollars annually. Around 50 billion of that, very broadly speaking, is around the European areas, some of that. Who is making that money? I’m not just talking about money for the traffickers; I’m talking about money for illegal sectors, legal sectors engaged in illegal business, and legal sectors engaged in legal business. If we want to understand trafficking, if we want to help people, if we want to help victims, if we want to help that woman who was forced to marry the third country national and then repeatedly raped, we need to see who is making money out of it. These are the people we need to convict and criminalise. These are the people who need to be sanctioned. We need to follow that money and we need to see who profits and why.
I won’t go into the Internet, but a lot of those activities take place online. So we need to understand more about how to work with the private sector as well. I will come to that in a minute, but I can tell you that our legislation, again very progressive, stipulates that legal entities are accountable for human trafficking. So it’s not just individuals, but it’s also businesses that are accountable. I am not aware, to this date, in Europe, of a business having been convicted of the crime of human trafficking. This is where the money is; this is where we should be focusing.
So if we want to move beyond criminalisation, we also need to cooperate. We need to build partnerships between the private, the public and the non-governmental bodies. In the European Union we have launched a European Civil Society Platform, 120 non-governmental organisations – some of them faith-based organisations – who work together collectively from different walks of life, to address trafficking. We are also about to launch a European business coalition. As I said, if we don’t work with the private sector, we don’t really stand a chance. And we need to move beyond corporate social responsibility. Excuse my language, “Blah blah”. We need to see how to hold the private sector accountable. And I don’t know, if I were a businessperson, which I’m not, I cannot think of a better advertisement than ensuring that your supply chains are slavery free, that you don’t employ, recruit, force slaves, knowingly or unknowingly – sometimes it’s unknowingly – but you have to make every effort to ensure that this is not the case.
We also need to build partnerships between all sectors, the judiciary, law enforcement, border guards, social workers, consular services, immigration authorities, labour inspectors. I can tell you very confidently that the European Commission has joined forces with all these different sectors, and we are working very closely with them, because it is the only way to get things done. And we also need to form partnerships between third countries and regional organisations. We have launched very close partnerships with non-EU countries, and this is at the heart of the work that we do. My job is to monitor the EU policy framework, the EU strategy against trafficking from 2012 to 2016. And a big part of this work was precisely to see who are the priority countries to work with, because if a person comes to Europe and then ends up being trafficked for forced labour, they come from somewhere. How do they come? What happens in that place of origin? How can we help in that place of origin? And how can we help that person, if they are extremely lucky to be identified as a victim – because very few of them are – if they are repatriated? How can we ensure that they don’t end up being re-trafficked? Because many of them end up being re-trafficked, so we are engaged in this vicious circle.
I could give you a very long list of all the work we have done but I don’t need to do that today: we have a website, it’s all there. What I can very proudly tell you is that we have delivered on everything we have promised to, up to now. What can the European Union do? We can legislate. And I think it’s not perfect, nothing is perfect in this life, but we can go as far as we are able to do, and I think we have very good legislation. We have very good policy that is accepted by the NGOs, by our member states, by our parliamentarians. And that makes me think that we are working in the right direction. And we have funding. So we can link the policy into the funding. Sometimes it makes people uncomfortable because, again, it is about money, but it is about making good use of your taxes and ensuring that those taxes go to the victims and not to advertising and paying salaries of people.
So we do all that, but this is what the European Commission, what the European Union can do. If we don’t implement all this, if it’s just words on paper – legislation is fundamental but at the end of the day, it’s just words – we don’t stand a chance. And there our member states have a long way to go. There are a lot more efforts now than there were a few years ago, and that we need to recognise. We will be drafting, it is my legal responsibility to draft a report by the end of the year, on the state of play in relation to trafficking in the EU. And we will take all these efforts into consideration, but more needs to be done. If we all do our job properly, I can assure you, we all know that we will have a lot less trafficking. Maybe we will not eradicate it, but it will certainly decrease to a very large extent.
If we really want to eradicate trafficking, we need to follow the money and we need to discourage the demand that fosters all forms of trafficking of human beings. We need to discourage this demand. What is standing between the criminals and the victims is us, the citizens, who are responsible. There are much better people with me in the room speaking afterwards on economics, but to me, if there is no demand, at least there is less supply. So we can talk all we like in this room, but, I think, if we fail to make use of all the possibilities that we have available, and we have a lot of possibilities, we have a lot of power in this room, we have legislation, we have policy, we have money, we have commitment, we have convictions, we have values. If we fail to use all of these possibilities to the maximum, we fail the victims, we fail that woman whom I talked about in the beginning, and we need to take a personal responsibility. We need to go beyond criminalisation. But we need to think about criminalisation, because criminalisation is not just on paper. We need to take our responsibility and have laws that have a normative effect that explains what is acceptable and not acceptable and then to convict people, not just have it on paper. So we need to move beyond criminalisation, but first we have to do that too.
I think we all have a role from each path of life, from the police, from policy, from charity, from faith, and our focus has to be those victims whom we have all met, we all know, and we have to remember that at the end of the day we are working for them, for nobody else. We are working for them.